Under the Health and Safety Act 2004 (Vic) an employer has a duty to provide and maintain a safe working environment, so far as is reasonably practicable.
Drug impairment within the workplace may put other employees at risk and compromise this obligation. Therefore, employers may feel the need introduce drug testing methods as a preventative measure, because they could be liable with penalties ranging from a fine to imprisonment.
It is perfectly legal for employers to conduct workplace drug testing, as drug testing falls within the guidelines of maintaining a safe working environment. But the issue is the regulation of such testing. As there is no clear regulation in place for workplace drug testing, countless issues arise.
How to test?
There is no shortage of testing methods. Employers have the choice of blood, urine, hair, and oral fluid analyses.
But whose doctor/medical worker will be used? Will the employer need to provide a doctor at work, or will the employee be required to attend their own doctor and provide their employer with the result?
Will the employer use their own personal observations of the employees as a means of detecting whether a person has been or is likely to be under the influence of drugs, or will they use a random selection method in order to not discriminate?
The legislation provides for reasonably practicable means of maintaining a safe working environment, but how frequently can an employer drug test before it is no longer reasonable to be doing so?
Testing could potentially be intrusive and embarrassing. If a urine sample needs to be taken, the employer may want the employee to be observed to prevent sample tampering. This method would likely be extremely uncomfortable to many.
The urine sample may also expose medical conditions that the employee may not want the employer to know about. Medical records are confidential to the individual and are not meant for the employer.
Although blood tests are not as intrusive as an observed urine test, some employees may not be comfortable undergoing such a process.
What constitutes a positive result actionable by the employer? Many prescription drugs contain narcotics and although misuse of these drugs can impair job performance, what happens if an employee is not impaired, but the result still shows that narcotics are present?
Similarly, cannabis can stay in the system for over four days and therefore can be detected even if it does not have a current impairment effect on the employee.
In the event of illicit substances being present, how does the employer deal with a positive result? The employer may potentially dismiss the employee immediately or refer them to counselling or even to criminal authorities.